BABY THERESA

I. STATEMENT OF FACTS
Theresa was born on March 21 1992, in Florida, USA. She was born with anencephaly, a fatal condition
that means the person is born only the brainstem of their brain and no skull, children with anencephaly
never gain consciousness and, if not stillborn, usually die only days after birth.

Theresa's parents, Justin Pearson and Laura Campo, knew before she was born that Theresa would have
no chance at life, but chose to continue the pregnancy and even have a cesarean section so that
Theresa's organs could benefit others.

It is within the Campo's rights, as parents of a minor to decide if Theresa's organs can be used for
transplant.

In order for her organs to remain viable for transplant, Theresa would have to be kept on a ventilator
until her organs were needed.

II. ISSUES
Pertinent to the case of Baby Theresa is the history of the first
American heart transplant performed by Dr Adrian Kantrowitz’s
team. On 6 December 1967, a heart was harvested from an
anencephalic baby. The baby was first immersed in freezing cold
water in order for the heart to stop, so that death could be
declared.4 Although this was many years before Baby Theresa was
reviewed by the court, it is hard to escape the conclusion that that
in order to satisfy the dead donor rule, Dr Kantrowitz’s team was
responsible for the intentional killing of an infant.

Shortly after this event, in 1968, the Harvard Criteria for

determination of brain death were published.5 By introducing the
concept of ‘neurological death’ the committee created a parallel set
of criteria by which an individual could be declared dead purely due
to the presence of a constellation of neurological findings and in the
presence of otherwise functioning organ systems. These criteria
were welcomed by an intensive care community dealing with a
growing number of patients in irreversible coma, but the
conceptualisation of Brain Death has created confusion. ‘Brain
death’ has different definitions in different jurisdictions, with some
advocating ‘whole brain’ rather than ‘brain stem’ death, and using
different criteria to diagnose this state. There are also residual
issues related to the ethical and philosophical dichotomy between
brain death and the more common forms of death that might be
recognisable to the man in the street and have existed for millennia.
For a concept as universal as death, it is difficult to reconcile these
varying definitions.

There have, however, been attempts to do just this. The President’s

Council on Bioethics Report ‘Controversies In The Determination Of
Death’6 aimed to align neurological death with the more common
cardiorespiratory definition under a common final set of criteria
which both mechanisms of dying would satisfy.

III. CONCLUSION
Theresa Ann Campo-Pearson (who later became known as Baby Theresa) was born with anencephaly.
This in its own right is not an unusual event, except that her parents, Laura Campo and Justin Pearson,
upon finding out that the condition would be rapidly terminal, and the prospect of any sentient life non-
existent, expressed a desire to offer Baby Theresa’s organs for transplantation. This act of extreme
altruism provoked an ethical and legal debate surrounding the definition of death. As organs may only be
taken from a deceased individual, and Baby Theresa was alive, the case was referred to the courts.

A circuit court judge Estella M Moriarty, ruled ‘doctors can take as many transplant organs as possible
from the terminally ill 6-day-old infant as long as they don’t kill her in the process’. She went on to say, ‘I
can't authorise someone to take your baby's life, however short, however unsatisfactory, to save another
child … Death is a fact, not an opinion’.1,2 The decision was upheld on appeal, but referred before the
Supreme Court of Florida, who sought to address the following question: ‘is an anencephalic newborn
considered ‘dead’ for purposes of organ donation solely by reason of its congenital deformity?’ Whilst
the court deliberated on the definitions of death and life, it eventually decided that these were
‘obviously … inapplicable to the issues at hand today’, and in finding that Baby Theresa was ‘a “live birth”
and not a “foetal death,” at least for the purposes of the collection of vital statistics’, the court found that
there was enough doubt present concerning both the status of the child (in terms of whether it was alive
or dead) and also the utility of actually changing the law (in that the organs would be of limited use and
the scenario was rare) that they had no mandate to change the law to recognise anencephaly as
equivalent to death.3 Whilst this disposed of the issues faced by Baby Theresa's parents and carers, it did
not adequately answer the question of whether the child was actually alive; rather it just stated that
Baby Theresa was not dead by the criteria used in the state of Florida.

IV. DISCUSSION
Pertinent to the case of Baby Theresa is the history of the first American heart transplant performed by
Dr Adrian Kantrowitz’s team. On 6 December 1967, a heart was harvested from an anencephalic baby.
The baby was first immersed in freezing cold water in order for the heart to stop, so that death could be
declared.4 Although this was many years before Baby Theresa was reviewed by the court, it is hard to
escape the conclusion that that in order to satisfy the dead donor rule, Dr Kantrowitz’s team was
responsible for the intentional killing of an infant.

Shortly after this event, in 1968, the Harvard Criteria for determination of brain death were published.5
By introducing the concept of ‘neurological death’ the committee created a parallel set of criteria by
which an individual could be declared dead purely due to the presence of a constellation of neurological
findings and in the presence of otherwise functioning organ systems. These criteria were welcomed by
an intensive care community dealing with a growing number of patients in irreversible coma, but the
conceptualisation of Brain Death has created confusion. ‘Brain death’ has different definitions in
different jurisdictions, with some advocating ‘whole brain’ rather than ‘brain stem’ death, and using
different criteria to diagnose this state. There are also residual issues related to the ethical and
philosophical dichotomy between brain death and the more common forms of death that might be
recognisable to the man in the street and have existed for millennia. For a concept as universal as death,
it is difficult to reconcile these varying definitions.

There have, however, been attempts to do just this. The President’s Council on Bioethics Report
‘Controversies In The Determination Of Death’6 aimed to align neurological death with the more
common cardiorespiratory definition under a common final set of criteria which both mechanisms of
dying would satisfy.

The case of Baby Theresa suggests another option. With the exact moment of death being moot perhaps
social acceptance of organ removal from ‘dying’ patients rather than from a ‘dead’ patients should be
explored, and it is suggested that a public debate on the issue should be initiated, encompassing (but not
dictated by) those directly involved with transplantation. The definition of death, contrary to what Judge
Estella M Moriarty said, is not a ‘matter of fact’, but of values. It is perhaps as important to consider what
we value in life and how we define life, before tackling what might constitute its absence. Death is not a
medical concept, it is a question for society, and in the words of the Florida’s Supreme Court: ‘In the end,
the society as a whole must judge that these technical standards and the opinions they reflect conform
to the society’s settled values and accepted conceptions of human existence and personal rights.

JODY AND MARY

I. STATMENT OF FACTS
Two girls were born as conjoined twins; they were joined at the
pelvis. Medical evidence suggested that if the girls were not
separated they would both die before they were one yearold. If they
were separated then it was likely that the stronger one, Jodie, would
survive, but the weaker one, Mary, would certainly die. Although the
issue for the Court of Appeal was simply whether or not the surgery
should be allowed, this required them to consider the criminal law.
This was because, if the operation took place, the surgeon might be
guilty of murder. If he would commit that offence then the operation
could not be authorised by the court. Murder The crime of murder is
committed where:

(1) a person (known as the defendant) has caused the death of the
victim; and

(2) the defendant intended to kill or to cause serious injury to the

victim. Intention will be

established either where:

(i) the defendant’s purpose is to kill or to cause serious injury

(known as direct intention); or

(ii) the defendant foresaw death or serious injury as a virtually

certain consequence (known as oblique intention).

Even where the defendant causes death and intends to kill or to

cause serious injury, he or she will not be guilty of murder if he or
she has a defence. English law recognises the

following defences, amongst others:

(a) Private defence: defence of oneself or another from actual or

threatened attack.

This applies where the defendant acts reasonably to save him or

herself or another person from harm. Traditionally the defence will
only be available where the defendant or another person is attacked
or about to be attacked by the victim.

(b) Duress of circumstances. This applies where the defendant or

another person is subject to a threat of death or serious injury. This
defence has not previously been applied where the defendant has
been charged with murder.

(c) Necessity. This applies where the defendant commits one crime
to avoid greater harm. However, this defence has not been
recognised as a defence to murder.

II. ISSUES
The key issues for the Court of Appeal concerned whether, if the
surgery was performed and Jodie died, the surgeon would be guilty
of murder. In particular: (i) whether the surgeon could be
considered to have intended to kill Mary by performing the
operation; and (ii) if so, whether the surgeon would have a defence,
particularly whether the defence of necessity, in the sense of acting
for the greater good, should be extended to the crime of murder.

III. CONCLUSIONS
The moral and legal case of the conjoined twins Mary and Jodie has
set the nation off in a frenzy of debating on whether or not the
twins should be separated. In doing so, it has been revealed that
only Jodie has a chance of surviving the operation, meaning the
operation is virtually an act of murder in order to save Jodie's life. It
has also been made known that if both twins are left to let fate take
its course, they will be dead within six months. The almost
impossible moral decision of whether or not Mary's life should be
sacrificed in order to save Jodie's lies in the hands of the three Lords
Justices of Appeal.

IV. DISCUSSIONS

The cases which raise hard moral problems are a subset of those
which raise problems of identity, namely, cases in which there is an
extensive organic overlap, but still two separate functioning brains.
These cases raise hard moral problems about whether to attempt
surgical separation when the extensive organic overlap both makes
(a) the life-prospects of the unseparated twins poor but (b) the
surgical separation of them is medically difficult and risks making
the life-prospect worse for at least one of the twins. By contrast,
when the overlap is relatively slight, this is likely to impoverish the
life-prospects of the twins to a comparatively smaller extent, and
surgical separation of them is probably easy. If the requisite surgery
is easily accomplished and risk-free, there is a strong moral reason
for performing it, since this will probably enhance the life-prospects
of the twins still further, because being conjoined in all forms brings
along some disadvantages, such as reduced privacy and exposure to
public curiosity. We may call such cases win–win cases because the
life-prospects of both twins are improved by separation.
TRACY LAIMER

I. STATEMENT OF FACTS
On January 18, 2001 the Supreme Court of Canada upheld the
decision of the Saskatchewan Court of Appeal giving Robert Latimer
the mandatory minimum sentence for second-degree murder of 25
years in prison 10 years before parole eligibility. Vulnerable people
across Canada can be assured that they will be equally protected
under the law. There are many misconceptions pertaining to the
Latimer case that need to be cleared. Tracy Latimer was born with a
severe form of cerebral palsy. She was unable to walk, or talk. She
had many seizures and was cognitively disabled. She depended on
others for all of her basic needs in life. Even though she was unable
to do many things, she would smile, laugh, and cry. She could think,
communicate and recognize the people she knew. She loved music,
and campfires. She was fed with a spoon, and went by bus everyday
to school. Robert Latimer killed his daughter Tracy on October 24,
1993, by putting her into the cab of the family pickup truck,
connecting a hose from the exhaust into the cab of the truck and
gassed her to death. Robert Latimer confessed to killing Tracy and
allowed the police to videotape his explanation. He claims that his
motive for killing his daughter was that he had no other choice
because of how much he loved her. Tracy Latimer Robert Latimer
was convicted twice and found unanimously guilty of second-degree
murder by all 24 jurors. All Robert Latimer needed was 1
sympathetic juror to have been acquitted of second-degree murder.
In the trials, both Robert and his wife Laura claimed that Tracy was
experiencing constant and uncontrollable pain. If this were true
then why were they allowing Tracy to suffer when her pain was
medically controllable? Their testimony conflicted with the writings
in Laura's own diary pertaining to the daily condition of Tracy.
Laura's diary stated that Tracy was often happy and smiling, and
lately she had been eating well. Tracy's teacher described her as a
happy and loving person who did not show signs of extreme and
uncontrolled pain, even though she had a dislocated hip. Tracy was
scheduled for surgery to repair her dislocated hip which would have
alleviated the pain and discomfort she was experiencing. In fact,
Robert Latimer was charged with homicide on the same day that her
surgery was scheduled to happen (November 4, 1993). Many people
are under the impression that the Latimers were overly burdened
and lacking in support and respite care for Tracy. In fact, Tracy had
lived in a respite home in North Battleford from July until early
October, 1993. Tracy had returned home because she was scheduled
for surgery. Tracy was also at school everyday. On October 12, just
twelve days before Tracy was killed, Robert Latimer was offered a
permanent institutional placement for Tracy in North Battleford. He
rejected the placement because he said he had ‘other plans'. He
later admitted to police that he had already decided to kill Tracy.
Generally, Tracy was a happy girl with a significant disability and
serious health problems. Tracy did not die from her condition, but
because of her condition. I ask the question, did having a severe
disability make Tracy any less human? The Supreme Court has
upheld Tracy as an equal citizen. There are thousands of people in
Canada who have physical and mental disabilities. The Latimers are
not the only family who struggle with the care of a family member.
For some people, pain and symptom management is a normal part
of their life. These people are often dependant on the care of others
and need the support of community. These people also need to be
protected from those people who question their "quality of life" or
their right to live. Able-bodied people cannot judge the "quality of
life" of a person with a disability. Tracy needed care and protection,
not death. The care and protection we grant to people with
disabilities may be positively affected by the punishment that is
served by Robert Latimer. I have sympathy for the Latimer family
and all people in society, like my family, who care for a family
member with a disability. I also have sympathy for Tracy Latimer
and people like her who are cared for by people who would rather
see them dead. We call on the Federal and Provincial governments
to re-examine the level of care that is provided for people with
disabilities, the elderly, the chronically ill, and all other vulnerable
people who are highly dependant on others for their basic care.
Canada must now become a leader in the care and equality of
people with disabilities, the elderly and other vulnerable citizens to
prevent other Latimer type cases. A just society is measured by how
it treats its most vulnerable citizens.

II. ISSUES
Tracy Latimer was born with a severe form of cerebral palsy. She
was unable to walk, or talk. She had many seizures and was
cognitively disabled. She depended on others for all of her basic
needs in life.

III. CONCLUSIONS

In fact, his honesty about what he had done was presented as proof
of his good intentions. The facts that he carried out the act in
secrecy, burned evidence, moved his daughter's body, denied any
knowledge about the cause of his daughter's death, and attempted
to have her body cremated to avoid an autopsy have been ignored
or de-emphasized in most media accounts. These deceptions were
carried out to avoid punishment, and perhaps that justifies them in
some people's minds. Eleven days after the killing, when confronted
with powerful evidence that showed that his daughter had been
murdered at a time that only he had the opportunity, he confessed.
However, like Susan Smith, as part of his confession, he indicated
that he had acted to save his daughter from distress. Was he telling
the truth this time? It is impossible to say.

Compounding this question are the facts that he chose to remain

silent at his first trial, making it impossible for him to be questioned
by the prosecution. He is trying to have his own confession barred
from admission if there is a second trial. Of course, he has the right
to remain silent and this does not mean that he is guilty.

IV. DISCUSSION
In this model, the attitudes that justify "mercy killing" of people
with disabilities are viewed not only as a symptom of discrimination
and violence, they are also viewed as a fundamental cause of future
violence. The bias of the Canadian news media not only trivializes
the murder of one child with a disability, it also accelerates the
forces that ensure future violence and more deaths. Most of the
examples included in this article are presented in general form or
taken from a few sources. These examples are not the only or the
worst ones. They are simply a few of many that illustrate various
points. Most of the specific examples presented here are from print
media. In fact, in the opinion of the author of this article, the
coverage in the electronic media has generally been even more
biased, but it is more difficult to cite direct quotes without print
transcripts available.